What Does Prosecutorial Discretion Mean In Criminal Law?

Posted on: 4 September 2019


When the police arrest a person for a crime or file a crime report of any kind, this report is sent to the local prosecuting attorney, which is an attorney that works for the state. The prosecutor then reads through the reports and makes decisions about how to proceed with each case, and this is where something called prosecutorial discretion comes into play.

What is prosecutorial discretion?

Prosecutorial discretion is a term that refers to the options and leeway the prosecutor has when determining how to proceed with cases he or she receives. The prosecutor in an area will be notified about every crime that the police create a report for, and he or she will receive an individual report about each one. Each time this happens, the prosecutor has the right to choose to proceed with filing charges for the crime or to drop the crime. In other words, the prosecutor will not decide to proceed with charges for every crime that occurs. Instead, the prosecutor may drop some of them.

What information does the prosecutor use when making this decision?

A prosecutor does not simply read through the reports and just randomly decide which to drop and which to pursue. Instead, the prosecutor has a duty in this matter to prosecute any crimes that are serious and that have enough evidence to make it worthwhile. If there is no evidence that the crime really took place, he or she may drop the charges, simply because it would not be worthwhile to prosecute a really weak case. The prosecutor may also take other things into consideration with charges, such as a defendant's criminal history and the seriousness of the alleged crime.

What else falls into the category of prosecutorial discretion?

The other thing to understand about prosecutorial discretion is that it also gives the prosecutor the freedom to offer plea bargains in cases. When a prosecutor decides that there is good evidence and good reason to proceed with charges against a person for a particular crime, he or she also has the right to offer the person a plea bargain. Prosecutors do not always offer plea bargains, nor do they have to offer them, but offering them is helpful for defendants and the court system.

If you are currently worried about criminal charges that are against you, it is important to understand how the criminal justice system works, and it is important to hire an experienced criminal defense attorney for help.